Immigration Tribunal Bail
Immigration Tribunal bail is when a Judge at the Immigration Tribunal grants bail following an application by a person in detention. The outcome is decided at a hearing after the Judge hears from both the Home Office and the person detained and/or their representative.
In 2021, 10% of people released from detention were released on Immigration Tribunal Bail. In 2022, 21% and in 2023, 28%.
The Application
The detained person or their legal representative completes the B1 bail application form and submits it by fax to the bail clerk at the appropriate hearing centre. Regional immigration tribunal hearing centres handle applications for specific detention centres and prisons.
The hearing centre will notify the applicant and the Home Office of the hearing date and time, usually within the next 1-2 weeks.
The applicant or their legal representative must then arrange for any supporting documents to reach the hearing centre before the hearing, and for anyone named in the application as a financial condition supporter/surety or as offering accommodation or acting to attend the hearing in person. Failure to attend may damage the application for release.
On the day before the hearing, by 2pm at the latest, the Home Office must serve a document called the “bail summary” on the applicant and their legal representative. This contains the arguments that the Home Office Presenting Officer (HOPO), acting for the Home Office, will make against release on bail at the bail hearing the following day. The applicant should read the bail summary and identify any factual mistakes so they can bring these to the attention of their legal representative, or to the judge if they are unrepresented.
The Hearing
Bail hearings for people held in detention centres are usually heard by videolink. There is no right to an in person hearing, this is at the discretion of the tribunal.
Applicants or their legal representative may apply to the First-Tier Tribunal (Immigration and Asylum Chamber) (FTTIAC) for a hearing in person in exceptional circumstances, for example if the person has been detained for a very long period and it is thought that it could be useful for the judge to see them in person.
During an online bail hearing the applicant sits in a video link suite in the detention centre, while their legal representative (if they have one), the interpreter (if booked), any financial condition supports or accommodation providers, and any family members, also attend online via a platform named ‘CVP.’ Applicants get around ten minutes for confidential discussion with their solicitor or barrister by video link before the hearing.
During in person bail hearings, the person detained is required to appear in court. Their legal representative, financial condition supporters, the representative for the Home Office and the Judge will also be present in court.
People detained in the prison estate may also have their application heard by video link. If the prison has no video link suite they will be taken by escort to a hearing centre for an in-person hearing. Shortages of secure hearing rooms in the HM Courts & Tribunal Service estate in the London area, and the low priority given by the Home Office to using escorting resources for court hearings, can result in delays in getting bail applications heard or failure to escort to hearings on the day.
The conduct of the hearing
Attending court, whether in person or via video link, is a stressful experience, often aggravated by long periods in detention and previous failures to get release on bail. The psychological impact of detention may affect confidence and the ability to recall details and facts. The Home Office Presenting Officer (HOPO) can cross question the applicant, and regardless of the facts in the case will oppose release by arguing that the applicant cannot be trusted, and is likely to pose a risk to the public if released. All of this may happen through an interpreter, and is mediated via a TV screen. The hearing may be over very quickly, and it is quite common for applicants to feel that they have not been allowed to have their say.
The focus of any bail hearing is on whether or not the applicant will abscond if released, meaning that they are no longer in contact with the Home Office, and whether or not any risk on release (for example of re-offending) outweighs the presumption of liberty. Home Office assertions of absconding risk and offending risk are rarely backed up with evidence, and need to be challenged if the applicant is to have a chance of release. The applicant will need to explain how they will keep in touch with the Home Office, why they will not offend again, and - if they have children for whom they were caring before they were detained - why their release is essential for their children.
Judges should consider whether to grant bail in line with the considerations set out in Guidance on Immigration Bail for Judges of the First-tier Tribunal (Immigration and Asylum Chamber). This is a helpful document which enables people in detention to understand how the Judge will approach the bail application.
Guidance on Immigration Bail for Judges of the First-tier Tribunal, current version dated 1st March 2023, available at: https://www.judiciary.uk/wp-content/uploads/2023/06/Guidance-on-Immigration-Bail-for-Judges-of-the-First-tier-Tribunal-Immigration-and-Asylum-Chamber-Presidential.pdf |
The judge will give their decision immediately at the end of the hearing, followed by a ‘Grant of Release’ document, a grant of “Bail in Principle” or a ‘Refusal of Bail’ notice. If granted bail, the document will set out their reporting requirements, their bail address, and any other conditions of bail.
Grants of Bail
If the applicant is granted bail, they will be released from the detention centre or prison where they are being held that same day, unless an electronic monitoring device (a tag) is a condition of bail, in which case the Home Office may detain them for a further 72 hours so as to fit the tag. If they will be living in Home Office accommodation on release they will be given a travel warrant for travel to this address, otherwise they must make and pay for their own travel arrangements to get to private accommodation. They may arrive late at night if the accommodation is far from where they were detained. Visitors can help by informing the accommodation manager on site of a late arrival. People should be released from detention with their property and with a summary of their medical notes.
Increasingly, a Judge may grant conditional bail or “bail in principle.” This is usually considered appropriate if an individual cannot be released immediately for example, where they do not yet have a suitable address to go to or where their probation officer (if they are detained on completion of a custodial sentence) has not yet approved their bail address and immediate release might place them in breach of their licence conditions. The grant of bail in principle may state something like, “to be released when an address approved by Probation.” Where bail in principle is granted, it is possible for individuals to be detained for a long time afterwards due to delays with securing a release address.
Immigration Judges do sometimes grant bail even in the absence of an approved release address on the assumption that (a) landlords will give permission to live in a property and (b) (where a person is subject to a licence) a probation officer will approve the bail address (Paragrah 68, Guidance on Immigration Bail for First-Tier Tribunal Judges, 2023). However, individuals who are subject to a licence should be aware that if the address is not approved, they may technically be in breach of their licence conditions even if their release is ordered by an Immigration Judge. It will be up to the individual if they wish to be released regardless. They should be advised to keep in frequent contact with their probation officer to avoid being in breach of their licence and any enforcement action taken as a result. It is unlikely that probation will take enforcement action if an Immigration Judge has ordered release notwithstanding the terms of the licence but this is not guaranteed.
Following the bail hearing, the Judge will usually transfer “management of bail” to the Home Office unless there are good reasons not to. This means that the Home Office, not the Tribunal, has the power to amend, remove or add bail conditions of their own volition or on application by the person on bail. If management of bail is transferred to the Home Office, individuals should be advised to read their Bail 201 form carefully on release as it is possible that the bail conditions granted by the Tribunal may have been amended by the Home Office.
Withdrawing bail applications
It is not uncommon for bail applications to be withdrawn, either before the hearing or at some point during the hearing. This may be on the advice of the judge, or on the advice of the legal representative. Judges may advise withdrawal if a surety listed on the application form has not been able to attend the hearing, and without a surety they are not minded to grant bail, if the applicant has not received a bail summary from the Home Office, or if an unrepresented person has submitted an incomplete application.
This example is taken from a 2012 BID report which highlights the challenges for people who lodge a bail application themselves (and may not fully understand the role of sureties):
“The applicant claimed to have many sureties (parent, brothers, partner), in the country, but none could come to the hearing. His partner was in hospital. (The) judge advised him to withdraw the application as he would not be granted bail without proof of where he would live and sureties to account for him.” [1]
Legal advisors may advise withdrawal if the conduct of the hearing raises concerns about fairness, for example if it becomes apparent that the judge has not read important supporting documents.
The Home Office will use the fact that someone has been refused bail in the past to argue against release in subsequent bail applications, and may use judges’ comments from the Refusal of Bail notice. A withdrawal may therefore cause fewer problems for the applicant, if refusal seems obvious.
BID, (2012), The Liberty Deficit: long-term detention & bail decision-making. A study of immigration bail hearings in the First Tier Tribunal. p.34 https://hubble-live-assets.s3.amazonaws.com/biduk/redactor2_assets/files/166/The_Liberty_Deficit.pdf
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